Common Law for Cops

On May 20th, 2010, Sgt. Robert Paudert and Patrol Officer Thomas Evans of the West Memphis, Arkansas, Police Department were engaged in criminal patrol interdiction efforts on a local interstate. They had no idea they were about to traffic stop “sovereign citizens” Jerry, and his son, Joseph Kane for a minor traffic violation that would lead to a violent confrontation resulting in both officers being killed by gunfire from an assault rifle (See Video Below). Ultimately, both Kanes were cornered by law enforcement and another shootout occurred in a local Walmart parking lot leaving the Kanes dead and several more law enforcement officials injured.

Jerry and Joseph Kane claimed that as “sovereign citizens” the laws of The United States, individual States and political subdivisions can’t exercise authority over them, because they are subject to only English Common Law. They feel they have the right to defend themselves, to include the Use of Deadly Force, against anyone who would infringe on their freedoms.

Don’t Underestimate Their Knowledge

Have you ever talked to a “Constitutionalist”, “Extremist”, “Sovereign Citizen”, “Freeman” or whatever they call themselves? I have, and the most erroneous opinion you can form of them is that they are a “Hill Billy with a Rifle”. In truth, they know more about Natural Law, Common Law, U.S. Constitution, Tax Law and other forms of statutes than the vast majority of cops, police educators and attorneys that I know. Their ideology may appear to be ignorant, and some of them maybe, but all of them are serious – deadly serious, and I’ve found them to be somewhat of a functional legal expert in an area cops aren’t familiar with. If you can even just spend five minutes with one and debate why they should follow “the law” you will most likely be surprised just how much they know about legal concepts you don’t and if you keep an open mind, how much you can learn from them too.

That’s my point here. When I was a kid my father used to tell me “Do what I say and not as I do”. That doesn’t garner a whole lot of respect does it? That’s how extremists view cops, saying to themselves, “they are trying to enforce a law on me, one which the cop doesn’t even understand let alone justify his or her authority to do so”. In their mind, the cop is a no-body, an imposter, and that mental threshold normally restricting someone from shooting an officer is thus removed. They don’t fear killing you anymore.

The Police Academy – Law 101

Most of us were taught in our police academy that “Old English Common Law” is that thing where the King said, “Yeah, that’s the way it is, because I’m the King”. When the Colonists came over from England they brought the Common Law with them. It then became, due to the efforts of our Constitutional Framers, a foundational brick, or something, to the U.S. Constitution right? Whoa wait a minute; it’s more in-depth than that, and far more important.

In The Beginning…

The “law” in its earliest forms has been identified by legal and history scholars to have been formulated somewhere around 4,000 years ago in Mesopotamia. Significance here is that these early codifications were the forerunners to what is better known as TortLaw today (a breach of civil duty) and is part of the common law series. This didn’t start in England, because England didn’t exist at this point, but instead started in the ancient Middle East.

Social Evolution

Just as cultures and norms changed overtime, so did the desires and problems of people. As early human settlers to Europe continued in their migration patterns to their dominant habitations areas, modifications of what they accepted of governance changed too. When the Roman Empire rose to world prominence it spread its law throughout conquered lands. When the empire fell, the laws remained such as the Institutes of Justinian, 533 A.D., but would later continue to evolve.

Further the influence of the Israelites tort process introduced through the Pentateuch (the first five books of the Bible), or Torah, otherwise known as the “Covenant Code” have been attributed by the American Bar Association to “provide the depth of the roots of tort law in the Judeo-Christian tradition”.

By the time the Middle Ages rolled around the legal theory of common law had evolved once again and took foothold in England, post Norman Conquest 1066 A.D. Given the fact that many of our Founding Fathers were former English subjects, transplanted to North America (many having been trained as lawyers in England) led to our introduction of common law here.

It’s important to understand that The Founders when constructing the Articles of Confederation and U.S. Constitution desired a variance (another evolution) of common law, because the common law system in England wasn’t working here too well. Remember the Declaration of Independence? As a result, a new legal system was designed by The Founders that did not completely separate itself from the English Common Law System, but rather Americanized it so as to fit our fledgling nations particular needs. In many cases common law crimes were codified, meaning written in such a way to more accurately reflect the offense as being more American, understood, than European. Many of our state statutes today still reflect that codification of yesteryear.

It was absolutely the intent of The Founders that the legislature from their respective states, to include the federal government, would interpret laws against what was already known or accepted (common law). Article III of the U.S. Constitution provided the judiciary with the authority to interpret law when the clarity of issue was required. The authority of the U.S. Supreme Court was defined, and tasked with having the ultimate interpretation authority keeping common law views as a backdrop to their decisions. In other words, men like James Madison, John Adams, Alexander Hamilton, et al., knew that the English System didn’t entirely work, and we needed a better one that still retained the best of our ancestry legal system.

Counter Argument

So what does all this mean when a “Constitutionalist”, “Extremist”, “Sovereign Citizen”, or “Freeman” argues with a cop on a traffic stop saying that they only adhere to English Common Law? Essentially, what they are saying is that they want to live in England. I would suggest that we find a way to assist them in getting there, (I’m big into Community Policing so I like to help people) or at least attempt to engage them in dialog not gunfire to get them to at least think for a moment about what we discussed above. It never ceases to amaze me what happens when people think. Sometimes we find that the differences between us are subtle and not substantial. Of course, if that doesn’t work the “Extremist” can always revert back to calling the officer an a$$&*^@, which has been upheld as being Constitutionally protected speech, rooted in the Americanized version of Common Law.

About The Author:

Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.